Walking the Line: Guardians Ad Litem and Disability Rights

Disclaimer for all readers: I am not a lawyer and the following is not legal advice. We at FRIDA do not provide legal services, though we are lucky to have lots of friends with JDs. If you have questions about guardians ad litem for a court proceeding concerning a person with a disability, please contact your state's Protection and Advocacy Agency (see http://www.ndrn.org/) or your state's Office of the State Guardian (for Illinois see http://gac.state.il.us/osg/). That being said...

Over the past couple of years of watching the KEJ case go through the throes of resolution, I find that a key player in protecting the rights of people with disabilities who are under guardianship is the guardian ad litem (GAL for short). A GAL is not the same as a guardian. Some folks will be familiar with a GAL as the person who is appointed by the court to represent the interests of minor children during a divorce case. A GAL (see http://en.wikipedia.org/wiki/Legal_guardian) is a person the court appoints to represent the interests of an involved party in a particular proceeding. A GAL for a person with a disability who has a legal guardian is someone that the judge appoints to represent the disabled person's interests at court. A GAL is supposed to be someone who is independent and not influenced by the desires of the court or the legal guardian.

Lawyers, if I am wrong, feel free to step in here on the definition.

Anyway, my point in bringing this up is that the GAL is not often discussed in the general disability rights/independent living movement as a player who can help us achieve equality and access. In the KEJ case, I see a lot of blog discussion about the rights of the ward and the rights of the guardian and how to deal with disabled parents and who should do the work of parenting and so on, but I see nothing to tell me that society at large understands the role of the GAL. All of these issues are valid and of great concern, but who is the GAL, anyway? Who trains them? How do they end up with access to our adults with the greatest legal dependency? How do courts select them? What are their caseloads like (how many clients, how many hours each)? Are probate judges aware of the types of knowledge that we in the disability rights and independent living movement take for granted? In Illinois, are GALs aware that our state is number one for institutionalizing people with developmental disabilities and dead last in funding home and community based services? What's up?

Striving to understand GALs across disabilities is extremely important because one simply never knows when one may be considered legally "incompetent" enough to need a legal guardian...and who knows if the legal guardian will actually work towards your best interests? Granted, I would think most legal guardians take their roles seriously and honestly strive to make good decisions, hopefully with their ward when possible. However, the fact is that some guardians do not act in the best interest, and sometimes that is because they are not aware of some of their ward's basic human rights, or they do not see honoring those rights as feasible for their realities.

The Convention on the Rights of People with Disabilities (CRPD) was recently ratified by 20 member countries of the UN. Among the tenets of the CRPD is the right to bodily integrity. I am happy that KEJ's right to bodily integrity will be preserved, but I am angry that it had to be contested and that generally a lot of people feel that that issue should stay in the doctor's office. For the sake of human people's lives, it cannot. We must discuss it. And we must have a more visible dialogue about the roles of the legal players in our civil rights struggle.

Finally, why should the issue of the GAL concern those working for women's rights and those who are feminists? The GAL certainly challenges parental prerogative. I think what is critical is to provide all possible training to GALs on all possible support options and all perspectives on peole with disabilities. The GAL, in my view, needs to be someone who is prepared to recommend meaningful choices to/for the ward---and choice, as we know, is of key concern for feminists. It is also paramount for disability rights folks. Doesn't that show that we are, after all, the same?